Although it is battling for eyeballs with newer services like TikTok, YouTube is still a dominant player in the online video space. While TikTok users spend slightly more time per month on their platform (34 hours per month compared to just over 28 hours), YouTube users spend longer per session – about 7 and a half minutes, which is 25% higher than TikTok. More amazingly, there is well over 500 hours of video uploaded to YouTube every minute. That amount has increased by a staggering 8,233% over 15 years.
These immense numbers require extraordinary scaling, of course. There are not enough humans to review all this new content, so Alphabet, YouTube's owner, has incorporated massive levels of automation to manage the deluge. This has consequences in many areas, including copyright law.
As is the case with any media, YouTube must accommodate intellectual property protections, lest it be found responsible for infringements resulting from user posts. Automation helps, but it can also be an extremely blunt instrument that does not align with Canadian copyright law.
For example, YouTube's Content ID system identifies copyright-protected content using a database of audio and visual files submitted by copyright owners. If a new video is uploaded that matches the Content ID data, it may simply be demonetized. This means that any advertising revenue from the new video goes to the original copyright owner. Normally this makes sense. I should not be able to gain ad revenue by simply uploading a Beatles song or video.
In other cases, the new video may be blocked altogether. The original owner may have disallowed such use, or wants to maintain other commercial rights. Again, this is how intellectual property law is supposed to operate for entire works or substantial portions thereof.
Savvy users who are uploading content on YouTube will often try to get around this. Mirroring the image will sometimes evade Content ID, or resizing it to play on only a portion of the full screen. There are also time limits below which Content ID will ignore. YouTube is, understandably, vague on the actual time allowed, but it is not long – a few seconds at most. It can also vary depending on the content and other factors.
This is where YouTube's rules start to conflict with Canadian copyright law. Copyright is not black and white. Using a protected work in one environment might be offside, but it could be permitted – even legislatively sanctioned – in other cases. I can illustrate with a couple of examples.
Suppose it is your daughter's wedding, and time for the first dance of the happy couple. The bride and groom have chosen a popular song for the dance, one that everyone recognizes. Since it is the smartphone age, many of the attendees are recording this dance on video, including the audio. One or more of them upload the dance to YouTube.
If that clip is more than a handful of seconds long, Content ID will probably flag it because of the copyrighted song playing in the background. It does not matter that it is not the whole song, or the music is not the focus of the video, it will still match. In some cases it simply means demonetization, probably not a big deal given the uploader's original intent. But if the copyright owner is blocking any such usage, the video will be taken down.
That is not the most serious issue in the world, and depending on your leanings between content creators and users, you might not care. But let us look at another example, something that the Canadian Copyright Act specifically allows – parodies and satires. Perhaps you are a Weird Al Yankovic wannabe, and you are recording funny new lyrics to a well-recognized pop song. You want to upload it to YouTube to get exposure and perhaps receive some ad revenue.
You may be out of luck. Depending on how close your music is to the original, Content ID may block it. But this is beyond what the Copyright Act disallows. Canadian legislation (similar to that in the United States) grants rights of fair dealing. These are carveouts from the exclusive rights of copyright owners, and serve various public interests. For instance, one is allowed to quote portions of copyrighted works for purposes of private study, news reporting, review, and yes, parodies. Under Canadian law, you are entitled to record a parody without violating copyright (This is a very general overview of the parody exception, and original owners may have rights to block or receive compensation. That is beyond this article.)
YouTube's Content ID system does not know or care about the parody exception, or most other types of fair dealing and use. The Content ID system will simply block your video. While there is an appeal process available, it is cumbersome, often expensive, and puts the onus on the new user instead of the copyright owner. It is essentially rewriting copyright law to fit the technical structure of YouTube.
Again, parodies and satires are subject to some complicated legal principles. That is partially the point. An algorithm like Content ID will not accommodate those principles, and simply blocks everything, or at least beyond what the law might allow.
That does not even deal with the fact that Alphabet, an American company subject to United States laws, is imposing its "rules" on other countries like Canada. This means that U.S. laws like the Digital Millennium Copyright Act ("DMCA") are baked into YouTube's system, whether or not the DMCA has any application to Canada. Although certain principles in the DMCA are also present in Canadian legislation, that is not always the case. For instance, in the U.S. the default, if a copyright claim is alleged, is for a provider like YouTube to simply take down the supposedly offending post and therefore avoid any co-liability for a violation. In Canada, YouTube would only have to give the offending uploader a notice that a claim has been made, and perhaps invite them to reconsider their choices in life. It is a significant difference, but in Canada we can be saddled with the more stringent DMCA regime simply because YouTube is based in the United States.
These are only a few instances of the immense power of the U.S. to influence international laws. While Canada and the U.S. share many copyright principles – a majority, actually – there are significant differences which Canadian lawmakers have deemed to be important to this country. Those exceptions might be minimized or even eliminated due to the far-reaching nature of the internet and the domination of the tech industry from south of the 49th parallel.
There are no good solutions to this, unfortunately. Obviously one could challenge a YouTube decision, or apply to a court to uphold the Copyright Act and override automatic blocking. That almost never happens. Would you spend tens or hundreds of thousands of dollars in legal fees to challenge your wedding dance video being blocked? Of course not, and most posts are like that, where the monetary rewards or penalties are far outweighed by enforcement costs.
But it is something to keep in mind as you digest content on the internet, whether from YouTube or otherwise. The technology and technical constraints imposed by social media and similar outlets are not necessarily in alignment with Canadian legislation. Sometimes that can help you, but often it is punitive.
Have you run into any situations where content blocking was contrary to Canadian law? We would love to hear about them, as Procido's Intellectual Property & Technology Group regularly deals with these issues.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
